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Deportation, Corporal Punishment, and Asylum

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Mollie Gerver
Mollie Gerver is a PhD candidate at the London School of Economics where she researches the repatriation and resettlement of
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On 20 June the organizations ASSAF, the Hotline for Migrant Workers and the Association of Civil Rights in Israel, petitioned against the reuniting of children with their abusive parents in order for them to be deported. The details can be found here. They advocated for a case-by-case evaluation of South Sudanese children who were separated by their parents because of abuse.

A strong reason why children in this situation should not be deported may be that the South Sudanese judicial system fails to prevent abuse against children in general. This fact may mean that all children – including those who are not abused by their parents – should not be deported to South Sudan or other countries where laws against child abuse are not enforced. In particular, the prevalence of child abuse in schools may be evidence for asylum in Israel.

As a general rule, children cannot receive refugee status just because they are abused by their parents in a ‘host country’ – in this case, Israel. They must show that, if they were to return with their abusive parents to their country of origin, the authorities in their country of origin would place the children under the care of their abusive parents. Admittedly, most host countries will probably not grant such asylum even under these conditions, but there is at least a precedent for granting such asylum in Europe. For example, in 1994, Holly Collins fled to the Netherlands from the United where her abusive husband gained custody of two of their children, Jennifer and Zackary, whose skull had been fractured by his father. She and her children gained refugee status in the Netherlands because she proved in court in the Netherlands that the United States judicial system could not protect her and her children against abuse.

In the case of Holly Collins the evidence of persecution was a particular court decision in the US that was only applicable to her and her children. In the case of South Sudanese children separated from their parents in Israel, there is no equivalent court decision from South Sudan to prove that, should particular children be deported, their parents will definitely remain their guardians in South Sudan even if they continue to abuse them. Rather, one must rely on the general application of law in South Sudan for evidence of what is almost certainly going to happen should the children be deported.

Yet, the strongest evidence that the children of abusive parents will not be protected is evidence that can be used to also grant asylum to South Sudanese children in Israel who are not abused by their parents.

Corporal punishment is extremely common in South Sudan. Sitting in a classroom in Aweil for one hour this April, I counted over ten different times that a child was beaten by a teacher with a rubber whip. The beatings were for talking out of turn, talking to a friend, or simply irritating the teacher. There is also collective punishment. When a child talks out of turn, and nobody admits to being the talker, the teacher will punish all. I was told by two children who returned from Israel that one girl in the class I observed was beaten until her hand swelled. For one written exam, all who received less than a 35% received five beatings and those who received below a 15% received ten beatings.

Beyond the classroom, children can be seen abused on the street. Police occasionally threaten to beat girls caught wearing trousers at certain times and places. In football practice coaches carry around a rubber whip and run after children who are to slow, whipping them to run faster, as happened to one returnee from Israel, the star of her football team. All in all, it is probably good that this football team exists. The fact that there is now a girls’ football team is impressive, and the fact that the coach coached them as he coached the boys – with whip in hand – is, in a deeply disturbing way, an indication of a type of equality. It is also an indication of the widespread pervasiveness of abuse.

Because of this, it is unlikely that children who have been removed from their parent’s custody in Israel will gain the same protection if returned to South Sudan. Unlike in the Holly Collins case, where particular children were forced to live with their abusive parent, in the South Sudanese case children in general are not protected. Because the norm in favor of corporal punishment is so strong, children cannot turn to authority figures to complain of abuse. For example, one returnee had told her teacher, when she was still in Israel, about being beaten, leading to the arrest of her parents. No teacher in South Sudan would respond to this by calling the police because teachers themselves use corporal punishment, or have colleagues and a boss who do.

If this is the case, all children’s cases should be evaluated individually in Israel, regardless of whether they were separated from abusive parent in Israel. Those who have already returned and face regular abuse in school should be re-admitted to Israel. If this is unrealistic then, at the very least, children currently in Israel should never be forcibly returned to any country – South Sudan or otherwise – where they will almost certainly be abused.

According to the 1951 Convention for the Protection of Refugees and its 1967 Protocol, if a person has well-founded fears of being persecuted because of his or her membership in a social group, this is grounds for refugee status. Children are arguably a social group. Children spend their time socializing mostly with other children, have distinct social standings within society, have social activities only they take part in, and usually self-define themselves as part of the group entitled ‘children.’ Corporal punishment in only directed towards children, and it is directed at almost all children. Nor are children just a biological category with social implications: all those in school are targeted, including those in their mid-20s who are in secondary school. There is no defined age limit for studying in school in countries where many must work to save up money for school fees.

It is tempting argue, ‘There are too many countries where corporal punishment is legal so Israel would need to grant asylum to too many children.’ Yet, most countries are progressing quickly in the direction of making corporal punishment illegal – already technically illegal in South Sudan under the Article 21 of the Child Act (2008). Corporal punishment is decreasingly being used in East Africa, and abuse is often not pervasive enough to truly constitute ‘persecution’. In Rwanda, where I worked for the 2010-11 academic year, the best private schools don’t use corporal punishment and public schools use it for children who break a rule that might harm themselves, such as small children running away from school. Older children, from age fourteen, are punished in other ways, such as with farming chores. If South Sudan joins the East African Community – which it hopes to – it may be more influenced by the changing norms of other member states with regards to corporal punishment.

In the school I observed in Aweil, when a child was beaten and cried in class, most of the class broke out in laughter. As a result, the child cried even more, leading to more laughter. I glanced over to the two returnees from Israel to the left of me on the narrow wooden benches that hold 80-100 children in a classroom. I was relieved to see that they weren’t laughing, but had concerned faces. This is significant: abuse has simply become an unacceptable mechanism for discipline in Israel– something the general public does not laugh about or use in a classroom, and this norm is held strong by children who have returned, even after a year of living in South Sudan. In other words, change can happen quickly and permanently. Steven Pinker, in his 2011 book The Better Angels of Our Nature: Why Violence has Declined, cites data showing a dramatic decline of support for corporal punishment in schools in the US, where corporal punishment is still legal:

A similar decline is perhaps occurring in South Sudan and other countries that use corporal punishment in schools. In South Sudan, I met a teacher who the returnees from Israel said would not use abuse. Nor will a good school accept any abuse. The neighbor of one family of returnees has opened such a school. She has the time, energy, and ideological commitment to not use physical force in punishment. Instead, children are instructed to sit in a chair in the corner or run a few laps around the school – admittedly physically painful for some of us, but not abusive. Her school is new and currently only runs classes from kindergarten through second grade, but she is adding a class every year.

Therefore, protecting children in Israel would not mean forever protecting all children from countries that have traditionally used corporal punishment. But it would mean protecting children who are at risk now.

All migrant children in Israel should have the opportunity to be considered for asylum because of abuse they will face after moving to their country of origin, regardless of whether their parents abused them. This would mean granting asylum to their parents, as well, just as children of refugees receive asylum. If Israel values the principle that no child should be abused, there is no other choice.

Even in countries which have officially legislated against corporal punishment in school, the rubber whip is viewed as a legitimate and indispensable tool for education. Asylum for children, and residency in Israel for their parents, can be used as an indispensable tool for their protection.

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